The United Nations Consensus Definition Of Aggression: Sieve Or Substance


A profound, yet almost imperceptible, change slowly is taking place among the nations of earth. A burgeoning awareness exists that the vital resources of this planet are not unlimited. The existing disparities in the human condition in various parts of the world, which have been forged in the international conscience through improved communications, have led to persistent demands that the widening economic and social gaps be narrowed. Nevertheless, despite the proliferating capacity to annihilate all living things, expenditures for armaments continue to increase, as fear drives nations to waste the assets that are needed to enhance the quality of life. In the face of the hazards created by such conflicting interests, the competing sovereign States are beginning to recognize that a more rational world order is imperative for human tranquility, if not survival.

This is not to suggest that a major transformation of the international system is about to take place. New States still are being born, and the spirit of nationalism and self-interest still prevails. Yet there is something stirring on the distant horizon and the speed of its approach is difficult to assess. Within the last decade alone, there have been global developments that would have been unthinkable even a quarter-of-a-century ago. Today it is not uncommon for diplomats and statesmen to spend much of their time attending world conferences to consider transcontinental controls over such matters as the pollution of the environment, the use of outer space, the exploitation of the seabed for all mankind, the limitation of nuclear and strategic arms, the uniformity of monetary standards, world health services, the distribution and pricing of oil, food, raw materials, and even the charting of economic rights and duties which in the past were considered part of the untouchable internal affairs of independent sovereign States.

The growing awareness of the interdependence of all peoples and the trend toward dialogue and attempted understanding are manifest. In many areas of deep-rooted contention, agreements denoting progress may still be far away; however, despite repeated setbacks, the forward thrust of a process of accommodation is clearly visible and unmistakable. The consensus definition of aggression reached by the United Nations General Assembly at the end of 1974 [2] reflects the fears and doubts of our time, but it is a tributary of the stream which is gradually moving States toward a more secure and peaceful international society.

Before considering whether the definition is just a sieve or whether it has substantive significance, it may be useful to cast a brief glance backward at its sources and its history.

The Origins of the Definition

At the end of the last century the Czar of Russia, recognizing that he could not cope with the financial burden of an arms race against France and Germany, convened a Peace Conference of 26 States in the Hague. A Convention for the Pacific Settlement of International Disputes was drawn up, containing a formal plan both for the mediation of disputes and for the creation of a Permanent Court of Arbitration. The hope was created in some minds that war would no longer be the approved and lawful method whereby sovereigns ended their disputes. The small print in all the plans made it clear, however, that the provisions that disputes be settled by arbitration would be neither compulsory nor enforceable since none of the sovereign States was really prepared to surrender its independence to any third party or group. What emerged from the 1899 and 1907 Conferences was not a plan to prevent war but some rules on how the States could go about killing their respective nationals in a more gentlemanly manner. The cost of their folly was soon to be paid. Fifteen million people lost their lives in World War I.

Woodrow Wilson led the call for a new world order. A Peace Conference and a League of Nations would prove that the enormous losses of 1914-1918 had not been in vain – at least that was the dream! In fact, however, the Treaty of Versailles and the Covenant of the League were more a defensive alliance of the victorious States than an effective plan to avoid the recurrence of new international conflicts. The existing democracies were determined to band together to “make the world safe for democracy.” A proposal for an international military force to maintain the peace was given scant consideration and the idea of a permanent High Tribunal, which might even bring Heads of State to trial for such novel offenses as initiating wars or committing crimes against humanity, was strongly opposed by the United Nations and others. The League’s stated plans to bring armaments under international control and to apply effective sanctions against an aggressor failed completely. Those who believed they had power were not willing to surrender it.

With America, shackled by isolationist leaders in the Senate, refusing to become a member of the League, the smaller States turned to treaties of mutual assistance in the hope that they might prove to be a more effective deterrent to war. It soon became obvious that if several States were to join together to repel aggression, it would be necessary to have some understanding about how the aggressor was to be identified.

The Council of the League and various committees wrestled with the precise criteria that could help determine which of the conflicting parties was the aggressor. Economic and industrial mobilization, propaganda, troop movements, large-scale attacks, the crossing of frontiers, failure to accept a cease-fire, or refusal to submit a dispute to a judicial body for binding determination, were all considered as possible indicators of aggression, which would then justify retaliation by the victim and its supporters by means of economic, financial and military sanctions. The detailed studies and draft treaties of non-aggression might have had some chance if the sovereign powers were really willing to accept the obligations which they entailed, but alas, in the 1920’s this was clearly not the case.

Great Britain was not prepared to commit the resources of its empire to preserve European boundaries. The United States Senate regarded foreign compulsory arbitration of disputes as an anathema. The ineffective substitute that unfurled was as the General Treaty for the Renunciation of War – more commonly known by the name of the United States and French Foreign Ministers – as the Kellogg-Briand Pact, signed in Paris in 1928. [3] To the acclaim of all self-styled “civilized states” war was officially outlawed as an instrument of national policy, and the parties pledged to resolve all disputes by pacific means. What could be simpler, clearer or easier?

The Pact of Paris contained one big loophole which doomed it to be ineffective, but made its acceptance palatable to even the great Powers. Every state was left free to decide for itself whenever its vital interests were threatened, and then it would be legitimate to resort to war as part of what was conceived to be an inherent right of self-defense. Colonial empires and the territory covered by the self-serving Monroe Doctrine were all considered to be preserved. The Pact was in effect another plan to guarantee the status quo. The only thing it could really assure was that in the future no war of aggression would be waged – except in self-defense.

In 1933 Mr. Maxim Litvinoff of the Soviet Union argued that the Disarmament Conference in Geneva that it would not be reasonable to expect the Soviet Union, then the only communist State, to submit to the judgment of other States that were clearly hostile to the Soviet system, unless there was an agreement in advance setting forth “how the aggressor is to be determined and who is to determine the aggressor.” He submitted for consideration a specific definition which was given careful study by a Committee of 17 nations under the chairmanship of M. Nicolas Politis of Greece.

The Committee’s final report praised the Soviet initiative and adopted most of its terms. The essential fact needed to identify the aggressor objectively was to ascertain which party was the first to use armed force. A declaration of war, invasion, attack on territory, vessels or aircraft (even without a declaration of war) and supporting armed bands which invade another State, were other key indicators of aggression. No political, economic, military or other consideration could be used to justify aggression. The Litvinoff/Politis definition made no reference to the term “war,” which was itself ambiguous, but simply outlawed “resort to force.” The problem of sanctions was also left aside as a separate issue.

M. Paul-Boncour of France called the definition “the chief keystone of the edifice of mutual international security,” but not all members of the Committee shared his point of view. Germany, Hungary, Italy, Spain, the United Kingdom and the United States preferred an elastic definition which would allow all the circumstances to be taken into account. No final agreement could be reached. The Politis Report was buried amid the other forgotten papers of the futile Disarmament Conference of 1932-1934.

As the League of Nations began to crumble in the second half of the 1930’s, all attempts to define aggression and to set up an effective international system of security came to an end. States returned once more to the system of international anarchy called sovereign independence. World wars would come to be listed by Roman numerals, for not having learned the lessons of history and not being ready to take the steps necessary to identify and repel aggression; the nations of the world were doomed to relive the horrors of the past. To the 15 million lives lost in World War I there would now be added another 35 million lives to be lost in World War II.

Like Phoenix arising from the ashes, out of the second world-wide holocaust that arose once more the hope that a new bird of peace would be born “to maintain international peace and security and . . . to take effective collective measures for the prevention and removal of threats to the peace and the suppression of acts of aggression . . . .” The plan conceived at Dumbarton Oaks in 1944 was that the great Powers would, in the future as they had in the 1940’s, act in concert to suppress whatever aggression might arise. When they assembled in San Francisco to create the new Charter in 1945, many of the delegates hoped that the deficiencies of the League would be corrected. Some, like the Bolivian representative, spoke out for a definition of aggression as essential to a system of world security, together with a mechanism of international justice which would take into account the economic and social well-being of the great masses of the people. M. Paul-Boncour, who remembered well the lessons of the League, appealed for an international force which would enforce the decisions of the Security Council in suppressing aggression. Unfortunately, the title “United Nations” was a misnomer. It expressed only a hope and not a reality, as the war-time alliances dissolved into the cold-war rivalries of competing social systems.

The United States and the United Kingdom once more led the majority in opposition to any definition of aggression in the United Nations Charter. The conclusion was reached that the determination of whether there had been a threat to the peace, breach of the peace or act of aggression was best left to the discretion of the Security Council. The Council was composed primarily of those States which had the capacity, and therefore the temptation, to commit aggression; at the same time, each one was given the power to veto any decision determining that aggression had taken place. It was like asking the fox to guard the chicken coop.

If the United Nations Charter built its own weakness within its frame, perhaps the rule of law might be invoked to deter future aggressions. Justice Robert A. Jackson, on leave from the Supreme Court of the United States, was designated by the President of the United States to help establish procedures for the trial of the major German and Japanese war criminals. It was his conviction that the time had finally arrived in history when the law had to take a step forward, and that the ancient notion, derived from theories of divine right, that the heads of government were immune from prosecution, would have to yield to the common sense of a new day. He proposed what had become the existing common law of nations be reaffirmed by declaring that aggressive war was a crime, for which the heads of state could be held to personal account. He was able to persuade his British, French and Soviet colleagues to agree, but he did not succeed in convincing them that the Soviet definition, or any other definition of aggression, should be written into the Charter of the International Military Tribunal.

The International Tribunal and subsequent courts in Nuremberg and Tokyo, rejecting arguments that they were imposing ex post facto justice, noted that the defendants must have known from the plethora of treaties and international agreements and declarations that aggression was a criminal act. Even without a specific definition it was agreed that by any permissible standard the unprovoked assault and invasion of peaceful neighboring States was a Crime against Peace for which the responsible leaders would be held to culpable account. At Nuremberg the trials were seen as part of the great effort to make the peace secure. The United Nations was to take the political action to prevent war, if possible, and to take joint military action to assure that any aggressor would be defeated, while the international criminal court would apply the law to deter statesmen from committing the greatest of all offenses against mankind. The principles of the Nuremberg Charter and Judgment declaring aggressive law to be a crime ratified by the General Assembly of the United Nations. Would it, nevertheless, turn out to be only “victor’s justice?”

Law does not operate in a political vacuum. It reflects the standards of the society that it is to serve. None of the Allied powers that joined to establish new legal principles at Nuremberg was prepared to be bound the rules which it purported to lay down for all the world. In the following years every one of them used armed force to obtain political ends, as invading armies marched into the countries of Eastern Europe, the Middle East, the Far East, and elsewhere. The United Nations was paralyzed by the power of veto. No new international courts were established to cope with charges of aggression, war crimes, terrorism, genocide, apartheid and other crimes against humanity. It would take more time and more effort, and perhaps more suffering, before it would become possible to achieve the aspirations of the Nuremberg trails that the force of law would replace the law of force.

While many of the nations of the world were busy maneuvering for political power, several member States continued their efforts to move toward a more peaceful world order. It was a confrontation between the “realists” who believed that only military power was persuasive, and the “idealists” who continued, despite all the adversities, to place their trust in more pacific methods.

The United Nations Moves to Define Aggression [4]

As the Fifth Session of the General Assembly in 1950, the Soviet Union, for reasons best known to itself, once more proposed that aggression be defined. A slightly revised draft of its 1933 definition was submitted. The subject was shunted to the International Law Commission which was then busy considering a Code of Offenses Against the Peace and Security of mankind, as well as the establishment of an International Criminal Court. The views off various governments were solicited, and the general feeling prevailed that the concept of aggression was a complicated one which was not susceptible to definition. The Assembly then turned the problem over to a Special Committee of 15 States which, after due deliberation, was unable to reach any agreement. The Assembly then enlarged the Committee to 19 Members, some of whom considered a definition of aggression to be “useless, dangerous and impossible.” Further action on the proposed Code of Offenses Against the Peace and Security, and the related International Criminal Court, was linked to agreement being reached on the definition of aggression. After a few years with almost no progress, a third Special Committee was appointed and expanded to 21 members. Ten years after the first Special Committee had been designated to consider a definition of aggression the debate still centered on the question of whether the time was appropriate for the Assembly to act. With fighting going on all over the globe – including in India, Pakistan, Cyprus, the Congo, Cambodia, Vietnam and the Middle East – it was clear that it was easier to commit aggression that to define it.

In 1967, again on the initiative of the Soviet Union, the Assembly established a new Special Committee composed of 35 Members, geographically distributed and representing the principal legal systems of the world.

Each year its mandate to strive for a definition of aggression was renewed as the Committee slowly moved closer toward an accommodation of sharply divergent views. After 7 years on intensive debate, which moved back and forth from New York to Geneva in annual five-week sessions, the Committee was finally able to report to the Sixth (Legal) Committee of the United Nations at the end of 1974 that it had reached a consensus definition of the meaning of aggression. It represented the culmination of almost half a century of international effort and was indeed an historic achievement. It was made possible not merely because of the determined efforts of such dedicated public servants as its last Chairman, Prof. Bengt HGA Broms of Finland, Joseph Sanders of Guyana, the last Rapporteur, George Lamptey of Ghana, who spoke for many non-aligned States, but also because of the new spirit of détente which moved the effective Robert Rosenstock of the United States and D.N. Kolesnick of the Soviet union into an atmosphere of improved harmony and cooperation.

The consensus definition of aggression was adopted by the General Assembly on December 14, 1974, without putting it to a vote. The 138 Member States were by no means agreed upon its meaning. If it had been put to a vote, China and a few others would have abstained. A few States noted some objections, and some special interpretations were noted for the record. The entire definition was a carefully balanced entity, containing negotiated compromises and deftly obscured clauses which were deemed necessary in a process of reaching a consensus. The full text, consisting of a Preamble and eight substantive Articles is attached, together with the Sixth Committee’s report, as an appendix.

The Preamble of 10 paragraphs restates, in somewhat altered wording, some of the relevant principles derived from the UN Charter. Some delegates felt that the definition might serve to clarify and thereby possibly even to expand the Charter terms. Others were convinced that no matter what was in the definition, the Charter itself remained the unalterable basic document for interpreting the validity of the actions by States. Some thought the definition has binding authority while others thought it was advisory only.

Principles of international law that had been accepted in the ambiguous “Friendly Relations” Declaration, which had won the consensus support of the Assembly in 1970, were also reaffirmed, with occasional variations in language and nuance designed to strengthen a particular political interest of one State or the other. These were frequently coupled with references to such imprecise clauses as “in contravention of the Charter,” or that events had to be judged “in the light of all the circumstances.” The Preamble set the stage for some of the disagreements which were to become more apparent in the substantive provisions that followed.

The general outline plan of the substantive definition was fairly simple. It would start with a declaration setting forth briefly the generic nature of aggression. This would be followed by some specific illustrations of the more flagrant and easily identifiable forms of aggression. A subsequent article would confirm that only the Security Council could determine whether aggression had actually occurred, and that the Council would retain widespread discretion. Some consequences of aggression would be listed, and finally the circumstances would be described in which the use of force might be lawful. One might wonder why it should have taken 50 years to prepare such a seemingly uncomplicated document. The answer could be found in the debates of the Delegates, as every word of every draft submitted by various combinations of States over a period of many years was taken apart, analyzed and challenged.

The opening article, which sought to capture the broad meaning of aggression in one declaratory sentence, heralded some of the forthcoming areas of basic disagreement. Ecuador and others insisted that the prohibition of force being employed against “territorial integrity” also included, by implication, “territorial waters and air space” – and no limits to either were indicated. The Soviet Union deleted, by its own interpretation, the word “sovereignty” which it found redundant and objectionable. Many states pointed to phrases which they considered so ambiguous and imprecise as to be almost meaningless: Thus, the use of force, to be aggressive, had to be “Inconsistent with the Charter;’ condemnation extended only to the use of armed force “as set forth in this definition;” Groups of States were only covered “where appropriate.” Very many states complained that by its terms the definition referred only to the use of armed force, whereas there were other forms of aggression, such as economic exploitation or political coercion, which could be equally destructive of a nation and its institutions, and which should merit equal proscription. Failure to accept agreed procedures for peaceful settlement of disputes also disappeared from the definition. These shortcomings, all having some degree of validity, were submerged in the desire to reach a consensus without further indefinite delay.

Article 2 was a key provision, for by its terms it compromised what had been perhaps the most difficult stumbling block over the years. The Soviets, going back to their 1933 draft, had always maintained that the most effective and objective deterrent against aggression was to condemn as the aggressor that state which had struck the first blow. The argument in opposition, led by the United States and the United Kingdom, was that it was often difficult to tell who had been the first to use armed forces and that the motives, purposes, or intents of the combatants should also be taken into account. Their reasoning became more persuasive in the atomic age when it could hardly be maintained convincingly that in order to avoid being labeled the aggressor, a State would have to wait passively and be destroyed. The problem was to find some formulation which would reconcile the view that priority of the use of force was decisive and the opposing view that the intent of the action would determine its legality.

The compromise which emerged, after years of heated debate, was that both points would be taken into account. The technique for arriving at that compromise was to employ language that enabled the parties on both sides to interpret that Article to suit their own prior conception.

Thus the first use of armed force, in order to be significant in this context, had also to be “in contravention of the Charter.” Many saw this as a loophole in that States might argue that their use of force was not “in contravention.” France said only the Security Council could decide that question. Even the use of force in contravention of the Charter would only be “prima facie evidence of an act of aggression.” Many States held that “prima facie” meant that it was aggression until and unless that conclusion was rebutted. Others could not understand how the application of force in contravention of the Charter could fail to be aggression. States with the tradition of the common law argued, however, prima facie case only gave rise to a suspicion of guilt and that there could be no determination that aggression had occurred until and unless there was a specific prior finding to that effect by the Security Council.

According to Article 2, the Council could, “in accordance with the Charter” – whatever that meant – take “other relevant circumstances” into account in refusing to reach any determination or in deciding that no aggression had taken place. Among the “other relevant circumstances,” the purposes and intentions of the parties, which many States had argued were not capable of objective verification, also could be considered. A final “de minimis” clause, excluding acts of consequences “not of sufficient gravity,” also provided a way out if the Security council decided, for political or other reasons, that it did not wish to act. Among the five permanent Members of the Security Council, there were at least three different views regarding the meaning of several of the clauses contained in article 2.

Article 3, listing certain acts that would qualify as aggression, also contained ambiguities. A declaration of war, having gone out of style, was no longer considered relevant. Only acts and not words would be considered and even the seven specific categories listed would not be decisive, but would only qualify the deeds for consideration as possible aggression. “Invasion and attack” by armed forces against “the territory of another State” being the classical acts of aggression, of course headed the list. “Military occupation, however temporary’ and “annexation” were thrown in for good measure to support some contemporary political objectives. The “use of weapons . . . against the territory of another State” was also listed. The condemnation of “bombardment,” which would seem to have been adequately encompassed within the much broader prohibition against “any weapons,” remained as a carry-over from the days of the Graf Zeppelin. The “blockade of the ports or coast” of another State was another listed indicator of aggression, but what precisely constituted a “blockade,” and to what extent the principle of blockade applied to land-locked States having no access to the sea, was deliberately left vague.

Whether the prohibition of attacks on “land, sea or air forces” also covered attacks on maritime vessels fishing in foreign waters was not clear from the definition. Coastal States wanted to be sure that if they took armed action within what they considered to be their territorial waters to protect themselves against foreign predators, that they would not thereby subject themselves to massive counterattacks as aggressors. The question was left open by again using ambiguous language in an explanatory clause which required lawful action to be “not inconsistent with the Charter.”

Whether indirect acts of aggression should be included in the definition was a source of major contention. Many States correctly noted that support for armed bands and subversion were among the most frequently used forms for overthrowing a foreign government and therefore any definition which ignored that reality would be unworthy of support. Others felt that it would take too long to agree upon a definition which sought to go too far, and therefore the focus should be restricted to the direct use of armed force. Some felt that assistance to liberation movements should not be discouraged or prohibited. To obtain consensus a number of indirect acts of aggression were added to the proscribed list. Overstaying permission to stay on foreign soil, and allowing one’s territory to be used for aggression against another State were included in the forbidden sphere. The main difficult arose in trying to define exactly how far a State could legitimately go in assisting armed bands acting against another State. The compromise which emerged after years of wrangling was to condemn the sending of armed bands which carry out acts “of such gravity as to amount to” the other listed acts of aggression. Then came the punch line: “or its substantial involvement therein.” The uncertainty and flexibility of the last cause made the listing acceptable to all sides – provided it was coupled with other concessions and safeguards which followed later.

Article 4 contained the catch-all sentence giving the Security Council open-ended discretion to decide that acts other than those listed could also constitute aggression. Only China expressed doubts about the wisdom of giving the Council, rather than the Assembly as a whole, such great authority. The foxes, of course, did not even consider allowing the chickens to decide for themselves when defensive action was necessary and justified; and the chickens, in coops of different political colors, didn’t dare make a sound.

Article 5 was an interesting amalgam of three unrelated ideas. The opening declaration that “No consideration of whatever nature . . . may serve as justification for aggression” had its origins in the 1933 draft. It may be noted that its phrasing does not say no considerations will justify the use of “armed force”; but rather that it will not justify “aggression,” which, as we have seen in the preceding Articles, is a conclusion that only the Security Council may reach. It was not surprising therefore that some States, when indicating their willingness to accept the sentence, described it as a rather meaningless truism. An explanatory note in the Committee’s Report tried to give the sentence substance as a further prohibition against unlawful intervention.

One of the more disturbing paragraphs in the definition of aggression was the reference in Article 5 to the criminal nature of aggression. After some US prodding, the British insisted that only a war aggression was a crime, thereby raising the entire difficult question of when and whether a state of war existed. At least one prominent British jurist felt that only the belligerent itself could decide whether it was at war. It would follow, therefore, that if a State declared that it was not at war it could never be guilty of aggression. Article 5 also seemed to ignore the Nuremberg decisions that even a threat of aggression that causes capitulation without a fight is a Crime against Peace. The statement that “aggression gives rise to international responsibility,” with no mention made of “personal responsibility,” which had been one of the main objectives of the Nuremberg proceedings, seemed to be an attempt to set the clock back to the days when the King could do no wrong. The British, denying any retrogressive purpose, were merely trying to make sure that international law would not go any further in that direction than it had already gone. They were prepared to go along with the Soviet’s compromise proposal that the subject be left open for possible further clarification at a later date, and that face-saving thought was added as an explanatory note in the report.

The final affirmation in Article 5 that territorial acquisitions resulting from aggression would not be recognized, was a badly worded attempt to reaffirm the principle that no special advantage resulting from aggression would be lawful – a principle well established in law and generally ignored in practice.

We have seen that “self-defense” had been the most frequently used and abused excuse to justify the unilateral or collective application of armed force. Many smaller States insisted that Article 51 of the Charter, which preserved “the inherent right of individual or collective self-defense if an armed attack occurs,” meant just what it said, and that armed force could only be used as a temporary measure to repel armed force. Some of the large western States maintained that armed might could lawfully be applied to either repel an armed assault or any other form of indirect aggression that fell short of being an armed attack. The Soviet Union opposed any limit of proportionality in response to aggression. To avoid having the attempt to define aggression turn into a debate on the definition of self-defense the Committee members concluded, in article 6, that they would be well-advised to simply adopt a neutral text which had already been accepted in the “Friendly Relations” Declaration, and which, once more, left the subject completely open.

Article 7 was the best illustration of the confrontation of ideas which seemed to be irreconcilable, and the achievement of consensus by the insertion of abstract principles which could be interpreted differently by those with opposing views. The issue was whether the use of force for the purpose of achieving self-determination or liberation from foreign domination would be lawful, or whether such force or assistance to such forceful efforts would constitute the crime of aggression. No one challenged the general right to self-determination, freedom and independence, but who exactly had the right and what means could be used to achieve it was quite another matter. The right to “self-determination” was restricted to “peoples forcibly deprived” thereof. Whether that meant deprived by force of arms or some less violent form of coercion was unclear. The Soviets wanted the rights restricted to “dependent and colonial peoples,” apparently to keep the problem out of their own backyard. France and others worried about the territorial integrity of the States if violence against such a vague concept as “alien domination” were to be sanctioned. Restrictive clauses therefore were added to require that all action be consistent with the Charter and the “Friendly Relations” Declaration, which already contained a maze of ambiguities, all of which were incorporated thereby by reference.

Many western States concluded that the restrictive clauses made it clear that unrestrained violence, no matter what the purpose, had not been authorized by this definition. Those committed to liberation and self-determination insisted that Article 7 and related Articles, assured that any force could legitimately be applied, and any assistance could lawfully be rendered, to aid the overthrow of alien oppressors by “peoples under colonial and racist regimes or other forms of alien domination.” Despite the agreement on the formulation of the text, there was no agreement in fact about what means could lawfully be employed, what aid could be received, and against whom such aid and means could be employed if condemnation as an aggressor was to be avoided.

The concluding Article 8 stipulated that every part of the definition was interrelated and formed an essential ingredient of one interconnected and inseparable whole. This assured that the meaning of any one provision could properly be understood only in the light of the other clauses and phrases together with all of their hidden nuances.


For fifty years and more the nations of the world were unable to reach any agreement on the definition of aggression. The consensus, despite all its shortcomings, was an historic achievement, even though it cannot be said that the definition closed all the old loopholes and opened the door to a new social order among States. Some of the ambiguities, the inconsistencies, the conflicting interpretations, and a few of the omissions have been noted. With countries in different stages of social, political and economic evolution, the time had not yet come when they were prepared to surrender the traditional prerogatives of sovereign might. As in the past, those States which possessed wealth and power were more concerned with preserving it than sharing it. Those less fortunate were determined to seek an improved status by every possible means. These facts of life were mirrored in the definition of aggression reached in 1974.

The price which had been paid in the past for the unfettered right of each State to decide for itself when it may unleash its violence against its neighbors has hopefully not been erased from human memory. How long man can continue to adhere to anarchy in international affairs is an unanswered and often terrifying question. No definition by itself can cause aggression to cease and no code of law can be meaningfull unless the society in which it is supposed to operate is prepared to be bound by its restraints. The definition of aggression, therefore, must be appraised within the context of the world as it exists today and evaluated in terms of what it may mean for the world of tomorrow.

The primary significance of the definition comes not so much from its terms, which, we have seen, are vague and unenforceable, but from the fact that it symbolizes and encourages a determination and a direction for change which is persistent and irreversible. No matter how slow the progress, the unrelenting striving for a peaceful society in which aggression is controlled through collective action of the international community is universal and cannot be denied or halted. Those career diplomats charged with the responsibility for drafting a definition were bound by their official duties to consider above all else the interests of their own homeland, yet they sensed and were unable to disregard a more pervasive need. What some may scoff at as a “tokenism,” of only symbolic value, has a peculiar way of taking root and growing into an accepted norm of international behavior, if in fact it reflects an unyielding public demand for reform.

In international society, just as in national societies, consultation, codification, adjudication and enforcement are the essential prerequisites by which law and reason replace trial by combat. The old order is changing. We are witnessing the growth of new regional associations of States – in Europe, South America, Africa and Asia – and the development of new rules for mutual cooperation and the appearance of new multi-national courts to resolve disputes involving economic, social, political and other human rights. New subjects and techniques of transnational interaction are slowly being developed. The most effective way to deter change by violent means is to provide the procedures and institutions for change by peaceful means. A stated obstacle has now been removed from the United Nations declared goal of seeking a Code of Offenses against the Peace and Security of mankind and an International Court to deal with the disputes that may lead to the outbreak of international violence.

The consensus definition of aggression is only a tiny fragment in a much broader mosaic. It is a tool which may be used to help build a more peaceful society of States. States that recognize that they are interdependent and not independent, that cherish and nurture their cultural and religious heritages without seeking to impose them on anyone else, that have the right to organize their own political and economies systems in whatever manner seems to them to best serve the happiness of their peoples, must also recognizer that, in their own self-interest, they may have to surrender some portion of their sovereignty, their wealth and their power in order that the hopes and aspirations of all mankind may be fulfilled.

Seen purely as a legal instrument, the consensus definition of aggression may be little better than a sieve, but it does not follow that it therefore has no substance. Although it reflects the fears, the doubts and hesitations of our time, the definition is a small, cautious and faltering step in the direction of a better world.

+ Show Endnotes


[1] JD, Harvard; Member of the New York Bar; Former Executive Counsel, Nuremberg War Crime Trials.

[2] 29 UN GAOR, 6th Comm., UN Doc. A/9890

[3] The General Treaty for the Renunciation of War, Aug. 27, 1928, 46 Stat. 2343 (1929), TS No. 796, 94 LNTS 57.

[4] See generally reports of the Special Committee on the question of defining aggression, 23 UN GAOR, 6th Comm., UN Doc. A/7185/Rev.11 (1968); 24 UN GAOR, 6th Comm., UN Doc. A/7620 (1969); 25 UN GAOR, 6th Comm., UN Doc. A/8090 (1970); 26 UN GAOR, 6th Comm., UN Doc. A/8419 (1971); 27 UN GAOR, 6th Comm., UN Doc. A/8719 (1972); 28 UN GAOR, 6th Comm., UN Doc. A/9019 (1973); and 29 UN GAOR, 6th Comm., UN Doc. A/9619 (1974). See also summary records of the debates in the Special Committee which are UN documents beginning with the symbol A/AC. 134 and summary records of the debates in the Sixth Committee which are the UN documents beginning with the symbol A/C.61.